Pick for Attorney General Has Experience Taking on State in the Courtroom

Gordon MacDonald, Governor Sununu's choice for Attorney General, before the Exectuive Council on March 28, 2017.

Jack Rodolico

Gordon MacDonald is a step closer to becoming New Hampshire’s next Attorney General. On Tuesday, he met with the Executive Council to discuss his nomination by Governor Chris Sununu.

MacDonald is an experienced lawyer. Some of his highest profile cases have been battling the State of New Hampshire - and the very office he now seeks to lead.

So how might MacDonald mght handle those cases from the other side of the courtroom?

Macdonald told the Executive Council what his priorities would be if approved to be the state’s top law enforcement agent. First on his list was "assuming the Attorney General’s role in the state’s comprehensive response to the opioid public health crisis."

As Attorney General, MacDonald would be in charge of enforcing laws regarding drug sales and trafficking.

"I will bring my full focus – a fresh set of eyes, a fresh set of ears," said MacDonald.

He recently represented Purdue Pharma, maker of OxyContin, against a subpoena from the state’s outgoing attorney general, Joe Foster. Foster is seeking documents that could prove Purdue illegally marketed painkillers in New Hampshire. After nearly two years of appeals by MacDonald and other attorneys, the State Supreme Court could soon rule Purdue needs to hand over documents to the Department of Justice, by which time MacDonald will likely be the boss.

MacDonald told the Council he knows how he’d handle conflicts like this as the AG.

"The Department of Justice has a recusal policy and I will comply with the recusal policy," he said.

MacDonald would not be the first AG to recuse himself from a legal matter. Under the policy, MacDonald wouldn’t be allowed to see any documents related to the pharma case. And the Deputy Attorney General would be the ultimate authority on behalf of the state.

Mitch Simon is an ethics expert and professor Emeritus at the UNH School of Law. He’s also advised MacDonald’s on this very matter.

"If you do breach a screen," said Simon, "that’s an ethical violation. That could impact your law license. And someone with the experience of Attorney MacDonald is just simply not going to take that chance, I wouldn’t think."

Here’s a little more on MacDonald’s experience. As he told the Executive Council, he has represented all kinds of clients, from the elderly to domestic violence victims. He has also worked on teams of lawyers that won two huge cases for clients who sued the state.

In one case, the Republican-controlled legislature denied payments to hospitals. In the other case, a Democratic governor tried to balance the budget by tapping into a medical malpractice fund. In both cases, courts ruled against the state – and in favor of MacDonald’s team.

Kevin Fitzgerald, a partner with the law firm, explained that last case a promotional video on Nixon Peabody’s website.

"The stakes were high," said Fitzgerald. "There wasn’t any room to lose. When you litigate against the state, particularly a state that’s enforcing the law that the legislature’s passed, settlement’s not an option. So we knew it was basically win or go home."

They won big. The case returned $110 million to ratepayers, winning MacDonald’s law firm a payment in the ballpark of $25 million.

MacDonald’s nomination has to be approved by the Republic-controlled, five-member Executive Council. Those councilors, including Democrat Andrew Volinsky, say MacDonald is a highly ethical attorney who they trust to recuse himself where necessary.

Volinsky is also impressed MacDonald has chaired the Campaign for Legal Services.

"To have an Attorney General coming in who cares about poor people’s access to lawyers and legal services I think is a real advantage," said Volinsky.

For his part, MacDonald sold himself on his ethics and experience, saying no matter who he represented in the past, as AG he’d have one client only.

"If I am confirmed, my job will be to represent the State of New Hampshire in the public interest and I will do so with fairness, integrity and independence," he said.

The Executive Council will likely vote on MacDonald’s nomination next week.

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